Wednesday, March 23, 2016

Gone With the Wind - Reproductive Rights Today

One can hardly write a blog on the beautiful madness of pregnancy and motherhood without touching on the increasing vitriol against women's reproductive rights in this country and attendant regulatory restrictions. For being a mother is such an important role and one that overwhelmingly changes your life that it should always be a choice. The ability of a woman to control when she becomes pregnant - the ability to choose to have children and to space her children - provides a woman with the strongest step in providing an equal footing with men, allows a woman to develop herself until she feels ready to become a mother or decide she does not want to be a mother and allows a woman to set herself up economically so she may provide for her children. If a child is imposed upon a woman before she is ready, she may not only be stunted in her career and education prospects, but she may be entrenched in a cycle of poverty. One may even argue that behind this religious veneer of protecting women from themselves, there is merely misogyny at work, to keep women in their proper societal place (quintessentially as "mothers") and/or the interest in perpetuating a cheap labour force.

I find it hard to swallow that in a supposedly secular society in which government and religion must be separate, there is such accommodation of religious views and further that religious liberty is viewed as not only the right to practice one's religion but that this practice necessarily entails restricting the rights of others. I suppose I should not be so surprised since the first pilgrims, seeking so-called religious liberty, were in fact seen as pretty kooky back in the Old World as their practices were more fanatical than the majority view at that time.

I admit I am partial to John Stuart Mill. I believe everyone should pursue their own good unless it interfere with someone else's. I suppose in essence hardly a soul would have an issue with this judgement and it is more in the adjudication of this intersection of liberties wherein minds would differ. Reproductive rights are not insular, they too, are part of an interplay of rights that we must adjudicate. In my view, the courts have failed to properly account for women's reproductive rights. While Roe v Wade is culturally viewed as the seminal decision providing a fundamental right to an abortion, even this case focused on the right of privacy and the due process clause of the Fourteenth Amendment and was not decided on an equal protections clause. Unfortunately, even the greatest impact of Roe v Wade was quickly combatted by the Hyde Amendment to Medicaid appropriations which denied any coverage for abortion, even though all other medical care for a pregnancy was fully covered. In effect, paraphrasing Brennan J's dissent in Harris v McRae, in which the constitutionality of this provision was litigated and unfortunately upheld, the government was trying to achieve by its dispersion of largesse what it could not do with regulations for by denying payment for abortions for indigent women as opposed to full payment for prenatal care, the government was interfering with their constitutionally protected choice. As an example, Brennan J compared this to the government providing free transport to Democrats on election day, but not Republicans. As the amendment denied Medicaid services and as only the indigent are eligible for Medicaid, it was a fallacy for the majority to be able to state that the government was not unduly interfering with a woman's decision since it was patently obvious that the women in question could not afford themselves to pay for an abortion. Worse, by establishing a system in which the right to an abortion was viewed in a primarily negative fashion, the effect of the decision to was to establish a two-tiered system in which rich women could exercise their constitutionally protected rights, but poor women could not. How is this, as Marshall J opined, not a denial of the equal protections clause? This amendment continues in effect today, denying indigent women, who may wish to have an abortion for health reasons (not an accepted exception unlike life, incest or rape) or because they could not afford a child or another child, an abortion. What is worse, many states have family welfare caps, which further deny benefits for the newborn which the state imposed on the mother to have. If there were ever an argument that the restriction of abortion is used to perpetuate poverty and provide cheap labour, it can be founded in this double denial of these benefits.

Women of higher means are no longer immune, either. Personhood is an entity that is lobbying intensely to impose personhood to embryos from conception, trying twice in Colorado, for instance, to impose such a law. Not only would this deny abortion in all instances but it would impose increased surveillance upon all pregnant women - are they taking enough prenatal vitamins, did they exercise too rigorously or have one too many coffees? Can they be penalized if anything should happen to their foetuses while in their care? If they fell down the stairs, would this be investigated to see if it were intentional or reckless? While no personhood amendment has passed, many states have enacted TRAPS or targeted regulation of abortion providers to severely restrict women's ability to have abortions.

The Supreme Court recently heard oral argument respecting Texan TRAPS in Whole Women's Health v Hellerstedt. Thankfully, the justices gave Scott Keller (the Texan SG) a run for his money. Sotomayor asked what whether the same restrictions applied to D & Cs after miscarriage when Keller admitted they did not, she asked what evidence he had that abortions- which are medically the same procedure - have increased risks. Keller had no such evidence. Sotomayor then asked why liposuctions and colonoscopies that have 28 to 30 times the amount of risk as abortions do not have the same restrictions imposed, again to evasive answers. When Sotmoyor asked why women had to take both pills over two days at a clinic, which would increase the expense and time women will have to expend in order to obtain an early stage abortion, asking whether any other oral medicinal treatment, such as for cancer patients had like regulations, Keller again had nothing. In looking at the undue burden standard and how many Texan women had to drive 200 miles (750,000) in order to get an abortion, Keller pointed out that women in the El Paso area could simply go to New Mexico. Ginsburg J quickly jumped on this fact as New Mexico does not have the same regulations imposed on its clinics. If Texas was of the opinion that it were OK for El Paso women to get abortions in New Mexico, why was it not OK for all Texan women? The masquerade was clearly exposed. While Texas claimed that admitting privileges were necessary so that women were not denied access to hospitals in an emergency, Keller did not submit into evidence one instance of a woman in an emergency from an abortion clinic that was not admitted because of her doctor's lack of admitting privileges (indubitably because there was no such instance requiring this regulation). Hopefully, the Supreme Court will find that the Texan regulations - so similar to those in effect in numerous states- unconstitutional.

While Texas has the spotlight, Indiana is about to pass an even more egregious law in House Bill 1337. It includes all the standard TRAPs - ultrasound requirement, waiting period, admitting privileges etc but it also provides that abortions will be prohibited if performed due to the discovery of a foetal abnormality and requiring that women pay for the cremation and/or burial of the foetus. This is also the state in which Purvi Patel is serving a 20 year sentence for allegedly self inducing her own abortion and neglecting a live born baby (of which the evidence for life was a floating lung test reminiscent of historical witch trials and junk science). Leaving aside the facts of the particular case, Indiana has only prosecuted two women for self inducing an abortion - neither of them white. As abortion becomes more difficult to obtain, women will indubitably turn to self induced abortions. This is the criminalization of a constitutionally protected right.

The laws restricting minors' right to abortions may be even more egregious, for the younger the woman, the more unprepared for motherhood. 21 states require parental consent, 13 have parental notification laws, 5 require both and 6 additional states have these laws enjoined (including California). If a minor finds themselves in distress, a parent may be the first person they contact. If they do not, there may be good reason to do so. In Casey v Planned Parenthood - the case that limited Roe v Wade- the court had to decide whether spousal notification was an undue burden and whether parental notification was an undue burden. The court found that spousal notification may lead to abuse and was an undue burden. However, the court conversely found that parental notification imposed no such burden. Unfortunately not all parent child relationships are to be emulated and minors may fear telling their parents because they may be severely reprimanded, denied consent where needed and/or kicked out of their homes. Minors in all these states can bypass the parental restrictions by going to court. This may seem easy, but it puts the already distressed child in a humiliating, frightening and near torturous position of having to admit in public court that she needs an abortion in front of a possible audience, which may include people from the neighbourhood that may know her or her parents.

There are even more insidious weapons. Pregnancy Crisis Centers, which are centers that deceive women as to the medical risks of abortion and the gestational age of their feotus in order to dissuade women from having abortions, often deceptively named to appear like an abortion clinic and spaced physically close to one, are active throughout the country. Very few states and cities- for instance New York and San Francisco have laws and ordinances which expressly aim to redress this mischief. Even despite these specific laws, these centers are indubitably violating false advertising and deceptive business practices laws and should be shut down everywhere.

Aside from restrictions to abortion, women are facing a fight over their right to contraception. The right to use contraception was decided by the Supreme Court in 1965 in Griswold v Connecticut. However, many women are denied affordable contraception in this country and in 2014 the Supreme Court in Hotel Lobby issued a 5-4 decision deciding that closely held private corporations which have owners whom hold religious beliefs against contraception can deny insurance coverage to their employees for contraception. This is a terrible decision. Ginsburg J in her dissent opined that it led to a slippery slope of accommodating other religious beliefs and denying further coverage - for instance Jehovah's Witnesses do not support blood transfusions. Further, people do not have unimpeded religious liberty in this country. People that believe in human or even animal sacrifice are not allowed to practice this despite their beliefs. Many people are of a religious belief - or even a moral belief against war and yet this does not excuse us from paying taxes that support numerous wars. Employers have hitherto fought and lost the right to deny employment and service to people of a different race or sexual preference due to their professed religious beliefs. The argument is that the government has a compelling interest in equal employment and that no religious belief for owners of closely held private companies and nonprofits (excluding religious organizations) can trump that. Does not the government have a compelling interest in providing affordable contraception and preventing unwanted pregnancy? Does not the government have a compelling interest in providing women proper reproductive care and health insurance no more costly than that of their male counterparts? The majority in that instance believed the government could find less "restrictive" methods to achieve this. After the federal government enacted new regulations in 2015 which provided that the insurance company would have to cover the cost if a closely held employer objects, several suits were filed that such accommodation- which requires the nonprofit or closely held private entity to certify to the HHS, insurer or third party that they hold a religious objection so that the insurer pays for the coverage is an infringement of the employer owners’ religious freedom. The Supreme Court will soon have to decide in Zubik v Burwell et al whether this accommodation imposes a substantial burden on the religious freedom of the individual employers at issue. Now the employers are not paying for the contraception, but have to submit a form. If paperwork is deemed too much of a burden over providing women contraception and prevention against unwanted pregnancy, I fail to see any rationality in such a decision. For too long has this country accommodated religious liberty so that its exercise directly impedes the exercise of others' constitutionally protected rights - including equal protection under the law.

I would also argue the same with respect to free speech. Free speech is fundamental to a free society and at times this requires that we allow those we do not agree with to espouse their views. It is also a fundamental constitutional right. However speech has always been regulated - the government may regulate the content in very limited circumstances and the government may impose time, manner and place restrictions, provided the government uses the least restrictive means possible. In 2014 in an unfortunate 9-0 decision in McCullen v Coakley, SCOTUS struck down a Massachusetts law requiring a buffer zone against protest of 35 feet around abortion clinics as being insufficiently narrow for its purpose - which was to protect against harassment of women getting an abortion and abortion providers in a state that has historically faced assault, even murder of doctors and bombings of clinics. The main issue was that the plaintiff in question did not merely want to protest, did not merely want to speak, she wanted to speak and counsel the women entering the clinic in order to dissuade them from continuing with their abortion. Her speech right thus was framed not as a right to speak but as a right to converse. The court accepted that by denying her the right to have eye contact and the ability to dispense her literature and converse with the women entering the clinic, she was effectively silenced, because her strategy was silenced. I respectfully disagree. As much as I disagree with people's views, whether religious or not, being able to dictate how others make decisions about their bodies, I agree they have a constitutionally protected right to shout this out from the streets, to post it up on billboards, to write it in the sky. The right to speak, however, should not be equated with the right to converse- particularly in all instances. The women entering the clinic, already distressed, have the right to be left alone. They have the right to be away from prying eyes, duplicitous smiles that only care for their babies as long as they are not born, from the imposition of other's views when they are most vulnerable. This is particularly so in a climate of increased vitriol and violence - a climate of terrorism - against women and their right to control their own bodies. This should have been accepted as a proper time, manner and place restriction.

Some countries are even more restrictive and deny abortion in all instances, including where the feotus has a lethal abnormality that will result in a still birth or its death shortly after, in cases of rape and in cases of incest. The UN Special Rapporteur on Torture has recently opined that this denial of abortion is tantamount to torture. I would agree - forcing a woman to have a stillbirth or the child of her rapist is horrific. South America has some of the strictest abortion laws on the books. Ecuador, for instance, completely prohibits abortion in all instances. As the plague of zika pervades over the continent and women are told to delay all pregnancy until 2018, this unfortunate virus may yet lead to a public discussion in those states respecting the strictness of their abortion laws and lead to legislative change.